Archive | Federalism

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing. […]

Last year I published an article in the Yale Law Journal arguing that the Constitution did not give the federal government the power of eminent domain. The Necessary Proper Clause was originally understood not to implicitly grant “great” powers to the federal government, and I argue that eminent domain (at least over land) was best understood as an example of a great power. The Takings Clause, passed a few years later, was not understood to grant the federal government any new powers. And from the Founding until the Civil War, the federal government never exercised a direct power of eminent domain in the states, instead relying on states to take land for any federal project that needed it. (Ilya critiqued the article here.)

Now the California Law Review’s online supplement has published a substantial response to my piece by Christian Burset, a law and history student at Yale. My thoughts are below the fold. His piece begins:

This Response critiques Baude’s historical account. He is absolutely right that the “great powers” doctrine needs more sensitive historical treatment, and he has greatly advanced our understanding of that history by recovering the lost case against federal takings. But he takes his case too far in arguing that from the Founding to the Civil War, “the federal government was not understood to have the power to exercise eminent domain inside a state’s borders.”

More generally, Baude, like his scholarly predecessors, errs in searching for a single historical understanding of federal takings. Until the Supreme Court settled the issue in Kohl, there was no consensus on the matter. Debate emerged in the 1780s and quickly became entangled with broader questions of federal power, slavery, and states’ rights. Baude rightly argues that Kohl was the first case to declare definitively the federal government’s

Many commentators decry the increasing polarization between “red states” and “blue states.” This recent Washington Post article summarizes some of the standard criticisms. But as my George Mason colleague Michael Greve explains, state polarization also has some valuable benefits:

Polarization (whether measured by single-party control over states, policy outcomes, or whatever) has its downsides. Single-part states may start to work like the House of Commons and “overshoot” in a red or blue direction. At the federal level, a polarized system is bound to produce politicians who aren’t used to compromise…..

On the other hand:… [the] “competitive” kind of federalism requires a certain degree of polarization (or sectionalism). And the price may well be worth paying. Consider a few well-understood but underestimated advantages:

Competitive federalism reveals information. We can debate the abstract advantages of “red” or “blue,” “American” and “European” social models until the cows come home: there’s no substitute for observing the actual effects in real life.

Competitive federalism satisfies preferences. A thoroughly blue or red United States would leave one half of the country very unhappy. That’s not true under federalism—not when preferences are heterogeneous across states and (relatively) homogeneous within states. As, increasingly, now.

Competitive federalism reveals preferences and reduces ignorance. People move across states lines in response to a ton of factors (climate, jobs, housing costs…)—many of which are policy-dependent. “Foot-voting” is a pretty good political feed-back mechanism: sooner or later, (state) politicians will pay attention….

You can’t have those sweet advantages without the bitter; the trick is to minimize the costs. Here, that means national-level solutions that allow the states to go their own way, instead of entangling them in federal schemes.

As Michael notes, I have explained why foot voting often leads to better-informed decisions than ballot-box voting in my recent […]

The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.

NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7! […]

Radiolab just did a nice segment about Bond v. United States, locating the treaty issue within the larger context of sovereignty and federalism. John Bellinger, Joseph Ellis, Duncan Hollis, and I make appearances. Audio here. […]

Co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at the Heritage event.

The event will be held on December 10, from 12 to 1 PM. More information, including how to RSVP, here.

And see here for a review of the book by constitutional law scholar Rob Natelson. […]

Many constitutional conservatives were critical of the Supreme Court’s decision in Gonzales v. Raich, holding that the federal government’s Commerce Clause power could reach the intrastate use and possession of marijuana for medical purposes authorized under state law. Now that an ever-growing number of states has chosen to authorize marijuana use and possession — some even for recreational use — how should those on the Right respond?

In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes. Yet marijuana remains illegal under federal law. The Justice Department has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement on the assumption that states will effectively regulate the sale and possession of marijuana. Are the Justice Department’s efforts to accommodate state decisions about marijuana policy prudent or irresponsible? Could it do more? Should the federal government defer to state voters on the desirability of marijuana prohibition? How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Can the federal government allow states to decriminalize marijuana possession and sale without undermining the rule of law?

One of the major issues on the British political agenda while I have been in the UK this week giving talks about Democracy and Political Ignorance is the prospect that Scotland might become an independent nation separate from the United Kingdom. A referendum on independence is scheduled for September 2014. A recent poll shows the “no” side with a substantial but not insurmountable 47-38 lead.

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was

This Wednesday from 5 to 6 PM, South Texas College of Law Professor Josh Blackman will be doing a presentation on his book Unprecedented: The Constitutional Challenge to Obamacare at George Mason University School of Law. In addition to being a highly successful young legal academic, Josh is also a prominent blogger, and a GMUSL graduate.

The event is sponsored by the GMU School of Law Students for Liberty (for which I am the faculty adviser), and will take place in Hazel Hall, Rm. 121. I will briefly comment on Josh’s book after his presentation, and he will have an opportunity to reply. I reviewed the book here. Although I have several disagreements with Josh’s analysis of the case, his book is a great read and is the closest thing to a definitive blow-by-blow account of the Obamacare litigation that we have so far. […]

The NAACP recently passed a resolution backing a proposed federal law that would prohibit enforcement of federal laws banning marijuana in states that have imposed lesser penalties or have legalized marijuana entirely. The resolution cites the “misguided and misplaced policies” of the War on Drugs, which have resulted in “the disproportionate over-confinement of racial and ethnic minorities.”

In one sense, this is not a surprising move. The NAACP previously called for an end to the War on Drugs in 2011, for similar reasons. But it is somewhat unusual for the nation’s most prominent African-American civil rights organization to back state autonomy on an important policy issue. For many decades, most political liberals and most minorities associated “states’ rights” with the defense of racism and segregation.

The NAACP’s endorsement of state autonomy on this issue certainly does not mean that they necessarily support greater political decentralization generally. But it is of a piece with other recent moves towards a more positive view of federalism on the left, including Yale Law Professor Heather Gerken’s work on the subject. Gerken argues that, despite its historic association with racism, conditions have changed in ways that make federalism more beneficial to minorities today than it might have been in the past. In some of my own work (e.g. here and here), I have argued that federalism was not uniformly harmful to minorities in earlier periods in American history either. During some crucial time-frames, minorities might well have been worse off under a unitary national policy on racial issues than they were with federalism.

None of this proves that federalism is always good for minorities, either today or in the past. There clearly are times when federal government intervention is the best way to protect minorities from state or local oppression. But it […]

A Conspiracy Against Obamacare is coauthored with five of my VC co-bloggers (Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, and David Kopel), and some of them are likely to be around as well. If you are going to be at the convention and are interested in getting your book signed, or just want to come by to talk about the books, I hope you will drop by. […]

As my colleague Michael Greve points out, during the oral argument Solicitor General Donald Verrilli repeated a mistake that has gotten the federal government into trouble in several previous federalism cases, including United States v. Lopez and NFIB v. Sebelius: refusing to admit that there are any structural limits to the scope of federal power. Throughout the argument, he consistently refused to admit that the courts could enforce any structural constraints on the range of issues that might be covered by a treaty. While he noted there “might” be an “outer limit” to the treaty power, he refused to state what it was, or even admit that it necessarily existed at all. This extreme position drew skepticism even from liberal Justice Stephen Breyer, a longtime supporter of broad theories of federal power:

In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they are otherwise useful for carrying out an enumerated power. Depending on your attitude toward textualism, you can either call this an implicit background understanding of the Clause, or you can call it an interpretation of the word “proper” — a power might be too great to be “proper” even if it is “necessary.”

I explain in the article that this idea has a strong historical pedigree. James Madison invoked it in his speech about the unconstitutionality of the national bank. And even the supporters of the bank, like Alexander Hamilton and John Marshall’s opinion in McCulloch v. Maryland, conceded the principle. As McCulloch puts it, there is a class of “great substantive and independent power[s] which cannot be implied as incidental to other powers or used as a means of executing them.”

The idea has also been getting play in the Court more recently. Chief Justice Roberts’s controlling opinion in NFIB v. Sebelius describes the individual mandate as a “great substantive and independent power” (quoting McCulloch), which is why it can’t be upheld under the Necessary and Proper Clause. Chief Justice Roberts returned to the language again in his separate opinion in United States v. Kebodeaux, where he said that “it is difficult to imagine a clearer example of such a ‘great substantive and independent power’” than the “police power.” That is, the Necessary and Proper Clause cannot be interpreted in such a way that would imply that the federal government had […]

Next week I’ll be giving two talks about my most recent article (and I think it’s my best!) — Rethinking the Federal Eminent Domain Power. Here’s Ilya’s JOTWELL post about the piece. (Even if you think you don’t care about the federal eminent domain power, I promise it’s far more interesting than that, since it’s really also about federal enumerated powers more generally, including original understanding of the First Amendment, federal courts questions like commandeering and sovereign immunity, and the Chief Justice’s opinion in NFIB v. Sebelius.)